Columbus & G. R. Co. v. Coleman

• Decision Date: 11 March 1935
• Docket Number: 31563
• Citation: 172 Miss. 514,160 So. 277
• Parties: COLUMBUS & G. R. CO. v. COLEMAN
• Court: Mississippi Supreme Court

160 So. 277

172 Miss. 514

COLUMBUS & G. R. CO. v. COLEMAN

No. 31563

Supreme Court of Mississippi

March 11, 1935

Division B

1 EVIDENCE.

Normal function of witness is to state facts, not opinions.

2 TRIAL.

It is jury's province to arrive at opinions from facts testified to by witnesses.

3 EVIDENCE.

Witness' assertions, involving admixture of fact and opinion, are inadequate to support affirmative of issue.

4. MASTER AND SERVANT.

Instruction to find for plaintiff in section crew member's action against railway company for injuries sustained, if defendant furnished plaintiff worn out or defective car or equipment with which to work and such equipment or car was proximate cause of injury, held erroneous.

5. MASTER AND SERVANT.

At common law, master's duty to servant regarding tools, equipment, and places to work is not absolute duty of insurer, but simply to exercise reasonable care to furnish servant reasonably safe tools, appliances, and place to work.

6. MASTER AND SERVANT.

Master is not required to furnish servant newest, best, and safest machinery, appliances, and places to work, but is obligated only to exercise reasonable care to furnish such as are reasonably safe and suitable for purpose in view.

7. NEGLIGENCE.

For person, doing particular act resulting in injury to another, to be liable therefor, act must have been of such character and done in such situation that person doing it should have reasonably anticipated some injury to another as probable result.

8. NEGLIGENCE.

Actionable fault of defendant must be predicated on action or nonaction, accompanied by actual or implied knowledge of facts making result of his conduct not only probable, but one which, he should have reasonably anticipated in view of such facts.

9. EVIDENCE.

Courts act on reasonable probabilities in civil cases, and to prove possibility only or leave issue to surmise or conjecture is never sufficient to sustain verdict in trial under common law.

10. EVIDENCE.

Generally, proof only that certain event transpired as result of stated condition proves only possibility and does not establish, probability sufficient to sustain verdict.

11. EVIDENCE.

Probability, sufficient to sustain verdict, must be shown by facts as such so that jury shall determine issue for themselves without intrusion of nonexpert witnesses' opinions.

12. NEGLIGENCE.

Jury must decide issue of reasonable probability of injury from doing of particular act by defendant in personal injury suit from facts as such, which must be substantially sufficient is detail to support jury's conclusion.

13. NEGLIGENCE.

Proof of defendant's general default in negligence case and plaintiff's injury, traceable to asserted negligence as possibility, is insufficient to sustain verdict for plaintiff under res ipsa loquitur doctrine.

14. NEGLIGENCE.

Field of use of res ipsa loquitur doctrine is strictly limited.

15. TRIAL.

Erroneous instruction to find for plaintiff in section crew member's action against railway company for injuries sustained, if defendant furnished plaintiff worn-out or defective car or equipment with which to work, and such defective equipment or car was proximate cause of injury, held not cured or corrected by instruction that evidence must show defendant's guilt, of some negligent act causing injury to find verdict: against defendant.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county HON. S. F. DAVIS, Judge.

Action by Charlie Coleman against the Columbus & Greenville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Frank E. Everett, Jr., and Gardner, Denman & Gardner, all of Greenwood, for appellant.

The verdict of the jury is contrary to the evidence.

M. & O. R. R. Co. v. Bennett, 127 Miss. 414; Clark v. Moyse, 48 So. 721; McFadden v. Buckley, 98. Miss. 28; Fore v. Ry. Co., 87 Miss. 211; Sims v. McIntyre, 8 S. & M. 324; McQueen v. Bostwick, 12 S. & M. 604; Barbee v. Reese, 60 Miss. 906; Wilson v. Horne, 38 Miss. 477; Tunsdall v. Walker, 2 S. & M. 660; Guion v. Doherty, 43 Miss. 538; Jones v. Pierce, 2 Miss. 695; Brown v. Forbes, 8 S. & M. 498; Prewett v. Coopwood, 30 Miss. 369; Drake v. Surget, 36 Miss. 458; Angel v. Coal Co., 35 A.L.R. 568; 2 R. C. L. 194; 2 R. C. L. Supp. 433; 4 R. C. L. Supp. 90.

While the verdict of a jury in actions for negligence is entitled to great respect, yet, if it clearly against the decided weight and preponderance of the evidence, it will be set aside.

Keyser Co. v. Klots Co. , 31 A.L.R. 283; 2 R. C. L. 196; 1 R. C. L. Supp. 435.

Both of the instructions granted for the plaintiff we think are erroneous. The vice, in the first instruction, as we see it, the court will notice, was in telling the jury that, if they believe from the preponderance of the evidence "that the accident alleged in the declaration aggravated or increased any rheumatism so as to proximately cause the loss of the plaintiff's leg, etc." This sort of instruction has been condemned time and again by this court in railroad cases.

Southern R. R. Co. v. Ganong, 99 Miss. 540-544; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37; Lanham v. Wright, 164 Miss. 15.

The objection to the second instruction is that it leaves out of consideration the question of whether or not appellant was guilty of any negligence in furnishing this car, or in other words, that appellant knew, or had reason to believe, when this car was taken out that it was not in a safe condition or was not suitable for such work, and that it was defective.

Wynn, Hafter & Lake, of Greenville, for appellee.

It will be noted, from an analysis of the first instruction, that the jury is simply told that, if they believe the appellee was suffering from rheumatism at the time of the accident or injury complained of, and that the injury sustained aggravated or increased such rheumatism, so as to proximately cause the loss of the appellee's leg, they could nevertheless award damages for the loss of the leg.

Southern Railroad v. Ganong, 99 Miss. 540, 55 So. 355; Hammond v. Morris, 126 So. 907.

If it would have been proper, under the defendant's contention, to have inserted into the appellee's instruction No. 2 the word "knowingly" or "negligently," and this was omitted, such omission was fully supplied by the instructions given. In other words, if it was not negligence to furnish a worn-out and defective car without the defendant's having actual or constructive knowledge at the time the car was supplied, then there would not have been any recovery; because Instruction No. 1 for the appellant clearly and succinctly tells the jury that, before any verdict can be found for the plaintiff, the defendant must have been guilty of some act of negligence.

Y. & M. V. R. Co. v. Kelly, 98 Miss. 367, 53 So. 779.

The clear proven damage in this case is eleven dollars and four cents a week, or five hundred seventy-four dollars and eight cents a year; or, figured on his life expectancy of thirty-two and one-half years, a total amount of eighteen thousand six hundred fifty-seven dollars and sixty cents.

With this uncontradicted proof in the record, a verdict of two thousand dollars was so grossly and shockingly inadequate as to make it meet and proper for this court to affirm this cause on liability, and to, reverse it and remand it for trial on the question of damages alone.

Argued orally by A. F. Gardner and Frank Everett, Jr., for appellant, and by Jerome S. Hafter, for appellee.

OPINION

Griffith, J.

Appellee was a member of a section crew on appellant railway, and, according to his evidence, was injured in an accident to a railway push car, which, at the time, was being used as a motor car trailer. The declaration is vague and general, and the evidence partakes largely of the same quality, but it would seem that although much is said in general terms of inducement about the equipment being old and antiquated, the particular negligent defect upon which the case is planted is that the coupling between the motor car and the trailer was worn and defective, and that as a proximate consequence thereof the trailer became uncoupled from the motor car, and that this happened at the moment when appellee was in the act of stepping from the trailer to the motor car, and that thereby he was caused to fall between them to his injury.

The determinative factual details as to the asserted defect in the coupling are not definitely disclosed in the evidence. Appellee testified that the coupling consisted of a chain "fastened into the hook, loop the chain in that hook and it was worn so it was loose and would turn over," and that the chain was fastened to the motor car with a piece of wire. And he said, "the push car was an old worn out car and had holes all in it and where the chain was fastened to the hook was wobbling every way the whole time it was going on the track." Appellee's corroborating witness testified: "That the hook screwed up there, somebody bored an augur hole, and it had worn loose and the least little thing started turning the hook over and...